GANAPATHY Vs. STATE OF KERALA

JUDGEMENT

(1.) The 2nd respondent herein filed a petition before the Taluk Sabha Office, Chittur alleging that the petitioner herein was creating nuisance by the construction of a latrine pit very close to the well situated in the nearby compound belonging to the respondent and the water in the well had been polluted rendering it unfit for drinking purposes. The Tahsildar, Chittur, being the head of the Taluk Sabha, directed the petitioner to remove the latrine pit and as he refused to comply with the above direction, a report was sent to the Sub Divisional Magistrate, Palakkad for initiating proceedings under S.133 Cr.P.C. and accordingly the Sub Divisional Magistrate initiated proceedings in M. C. 97/96 and a preliminary order was issued against the petitioner directing him to remove the latrine pit at a distance of 15 metres away from the well so that pollution of the water in the well could be prevented. Aggrieved by the above order, the petitioner preferred Crl. R. P. 27/97 before the Sessions Court, Palakkad. The above revision was allowed and the matter was remitted to the Sub Divisional Magistrate directing the court below to afford an opportunity to the revision petitioner to substantiate his contentions. Thereafter opportunity was given to the petitioner to let in evidence. Thereafter the Sub Divisional Magistrate passed a final order directing the petitioner to remove the latrine pit to a distance of 15 metres away from the well. Aggrieved by the above order, again the petitioner filed Crl. R. P. 11/98 before the Sessions Court, Palakkad. After considering the evidence the Sessions Court dismissed the revision. Aggrieved by the above order, the petitioner has come up before this court invoking S.482 Cr.P.C.

(2.) Heard the learned counsel for the petitioner and the 2nd respondent.

(3.) The main argument advanced by the learned counsel for the petitioner was that the Sub Divisional Magistrate had no jurisdiction to pass such an order as no public interest was involved in the above case. It was further submitted that it was a pure dispute between two individuals and as such the Sub Divisional Magistrate was not competent to invoke S.133 Cr.P.C. and hence the order passed by the Sub Divisional Magistrate and confirmed by the Sessions Court was a nullity and is liable to be set aside. The learned counsel for the 1st respondent submitted that the well of the petitioner was the only one from where the people of the locality were drawing water during draught and as such the public had a right for using the well for drawing drinking water and thus there was a public right and as such the Sub Divisional Magistrate had jurisdiction to invoke S.133 Cr.P.C. In order to invoke S.133 Cr.P.C., there should be an infringement of a public right. This Court in C.V. Muthuvelas Velappan v. K. V. Narayanan Nair ( AIR 1964 Ker. 252 ) held that S.133 Cr.P.C. can be invoked only when there is an infringement of a public right. The learned counsel for the petitioner placed reliance on a decision of this Court in Rajappan v. Sub Divisional Magistrate ( 1998 (2) KLT 915 ). There also it was held that in order to attract S.133, there should be an infringement of a public right. The learned counsel for the 1st respondent argued that when the public at large was drawing water from the well of the 1st respondent, there was a public right involved in the matter and hence the Sub Divisional Magistrate had jurisdiction to interfere in the matter invoking S.133 Cr.P.C. Reliance was placed on a decision of this Court in Augusthy v. Varkey ( 1989 (1) KLT 654 ) there it was held: